Appeal by defendant from judgment entered 7 September 2005 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 7 December 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen E. Long, for the State.
Jeffrey Evan Noecker for defendant-appellant.
Defendant Jason Paul Patterson appeals from his conviction for
robbery with a dangerous weapon. Defendant argues (1) that the
indictment was fatally defective, (2) that there was insufficient
evidence to support the robbery charge, and (3) that his trial was
prejudiced by the prosecutor's eliciting testimony that only served
to evoke sympathy for the robbery victim. We find each of these
arguments unpersuasive and, as a result, conclude that defendant
received a trial free of prejudicial error.
The State's evidence tended to show the following facts. On
the evening of 22 March 2005, at about 6:00 p.m., Marjorie Catchum
was walking through the rain to her car in the parking lot of a
Wilmington shopping mall. After Ms. Catchum unlocked her car and
as she was pulling her umbrella into the car, defendant approached
her. Defendant pressed a handgun into Ms. Catchum's stomach and,
reaching over her, grabbed her purse from the passenger seat. When
Ms. Catchum told defendant that the purse had very little money in
it, defendant replied that she "better be telling the truth" and
threw the purse back onto the seat. Defendant then returned the
gun to his belt, told Ms. Catchum "I'm not going to hurt you," and
fled the scene.
After defendant had left, Ms. Catchum used her cell phone to
dial 911. The police had her watch a security video, and she
identified a man on the video as the robber. The following day,
Wilmington police officers spotted a truck on the 4500 block of LexRoad matching the description of a truck that was also identified
on the same security video. An officer looked inside the truck and
noticed a box of ammunition. After additional officers arrived at
the scene and verified that the truck was the one associated with
the robbery, the officers knocked on the door of the residence
where the truck was parked and identified themselves as police
Although the officers could hear noise and see lights within
the house, nobody answered until the police began to tow away the
truck. At that point, a woman emerged, and she then persuaded
defendant to also leave the residence. A detective went inside the
residence and seized a loaded handgun, as well as clothing that was
consistent with the description of the clothing that the robber
Defendant was indicted on one count of robbery with a
dangerous weapon. At trial, defendant testified in his own
defense. Because of "financial difficulties," defendant said his
"intent was to go [to the mall] and rob somebody." Defendant also
read aloud a handwritten statement he had provided to the police in
which he described the events in the mall parking lot. Although he
claimed in his statement that the gun was unloaded during the
encounter, he admitted that he told Ms. Catchum that he "wanted
money" and that he "reached for her purse."
The jury returned a verdict finding defendant guilty of
robbery with a dangerous weapon. On 7 September 2005, the superiorcourt sentenced defendant to a term of 62 to 84 months
imprisonment. Defendant gave timely notice of appeal.
 Defendant first argues that the indictment in this case
was fatally defective because it failed to allege all of the
essential elements of armed robbery. The law is settled that "[i]n
charging a criminal offense, an indictment must state the elements
of the offense with sufficient detail to put the defendant on
notice as to the nature of the crime charged and to bar subsequent
prosecution for the same offense . . . ." State v. Poole
, 154 N.C.
App. 419, 422, 572 S.E.2d 433, 436 (2002), cert. denied
, 356 N.C.
689, 578 S.E.2d 589 (2003).
Our Supreme Court has held that, under N.C. Gen. Stat. § 14-
87(a) (2005), "armed robbery is: '(1) the unlawful taking or an
attempt to take personal property from the person or in the
presence of another (2) by use or threatened use of a firearm or
other dangerous weapon (3) whereby the life of a person is
endangered or threatened.'" State v. Hope
, 317 N.C. 302, 305, 345
S.E.2d 361, 363 (1986) (quoting State v. Beaty
, 306 N.C. 491, 496,
293 S.E.2d 760, 764 (1982), overruled on other grounds by State v.
, 322 N.C. 506, 369 S.E.2d 813 (1988)); see also State v.
, 166 N.C. App. 202, 205, 600 S.E.2d 891, 894 (2004) (reciting
same three elements). The challenged indictment reads:
[T]he defendant named above unlawfully,
willfully and feloniously did to [sic] steal,
take and carry away another's personal
property, to wit: A WOMEN'S PURSE AND
CONTENTS, from the person and presence of
MAJORIE KETCHUM [sic]. The defendantcommitted this act by means of an assault,
consisting of having in his possession and/or
threatening the use of a deadly weapon to wit:
A Handgun, whereby the life of MAJORIE KETCHUM
[sic] was threatened and endangered.
The indictment thus set forth all of the elements of armed robbery
specified in Hope
and was, therefore, sufficient.
Relying on State v. Davis
, 301 N.C. 394, 397, 271 S.E.2d 263,
264 (1980), a case that predates Hope
, defendant nonetheless argues
that armed robbery has in fact seven elements and that the
indictment at issue omitted three of the seven elements. See id.
(noting that armed robbery is "the taking of the personal property
of another in his presence or from his person without his consent
by endangering or threatening his life with a firearm, with the
taker knowing that he is not entitled to the property and the taker
intending to permanently deprive the owner of the property").
Specifically, defendant contends that the indictment failed to
allege: (1) that Ms. Catchum did not consent to the taking; (2)
that defendant knew he was not entitled to the property; and (3)
that defendant intended to permanently deprive Ms. Catchum of the
We note that Davis
did not involve a challenge to the
sufficiency of an indictment, but addressed whether the State's
evidence was sufficient to withstand a defendant's motion for a
directed verdict. A review of Davis
, and other pertinent
cases reveals that our courts consider the more detailed language
to be subsumed within the three elements specifically
articulated in Hope
. Thus, in State v. Fleming
, 148 N.C. App. 16,20, 557 S.E.2d 560, 563 (2001), this Court first set out the Davis
description of armed robbery and then described the elements of
that crime in accordance with Hope
Under G.S. 14-87, an armed robbery is
defined as the nonconsensual taking of the
personal property of another in his presence
or from his person by endangering or
threatening his life with a firearm or other
deadly weapon, with the taker knowing that he
is not entitled to the property and intending
to permanently deprive the owner thereof. To
sustain a conviction of robbery under N.C.
Gen. Stat. § 14-87, the State must prove (1)
the unlawful taking or attempted taking of
personal property from another; (2) the
possession, use or threatened use of firearms
or other dangerous weapon, implement or means;
and (3) danger or threat to the life of the
(internal quotation marks and citations omitted).
Significantly, defendant cites no case finding an indictment
to be insufficient for failure to include the allegations described
here by defendant. Indeed, to the contrary, our courts have held
that the elements identified as "missing" by defendant are implied
by the use of language such as that used in this indictment. See
State v. Young
, 54 N.C. App. 366, 370, 283 S.E.2d 812, 815 (1981)
("It is not required that an indictment charging the felonious
taking of goods from the person of another by the use of force aver
that the taking was with the intent to convert the personal
property to the defendant's own use . . . ."), aff'd
, 305 N.C. 391,
289 S.E.2d 374 (1982); State v. Pennell
, 54 N.C. App. 252, 260, 283
S.E.2d 397, 402 (1981) (noting "that the language in the
indictment, that the defendant 'unlawfully and wilfully did
feloniously break and enter a building of Forsyth TechnicalInstitute, belonging to the Board of Trustees,' implies that
defendant did not have the consent
of the Board of Trustees"
(emphasis added)), disc. review denied
, 304 N.C. 732, 288 S.E.2d
804 (1982); cf. State v. Osborne
, 149 N.C. App. 235, 244-45, 562
S.E.2d 528, 535 (upholding larceny indictment even though "it
failed to specifically allege that defendant did not have consent
to take the property, nor that defendant had the intent to
permanently deprive [victim] of his property"), aff'd per curiam
356 N.C. 424, 571 S.E.2d 584 (2002).
In short, the indictment at issue alleged each of the
essential elements of armed robbery as established by the Supreme
Court in Hope
. The indictment, therefore, was sufficient.
 Defendant also argues that the trial court erred in
denying his motion to dismiss, asserting that the State failed to
present sufficient evidence to support the "taking" element of
(See footnote 1)
When considering a motion to dismiss, a court must
determine if the State has presented substantial evidence of the
essential elements of the offense. State v. Robinson
, 355 N.C.
320, 336, 561 S.E.2d 245, 255, cert. denied
, 537 U.S. 1006, 154 L.
Ed. 2d 404, 123 S. Ct. 488 (2002). "'Evidence is substantial if it
is relevant and adequate to convince a reasonable mind to accept a
(quoting State v. Parker
, 354 N.C. 268, 278, 553S.E.2d 885, 894 (2001), cert. denied
, 535 U.S. 1114, 153 L. Ed. 2d
162, 122 S. Ct. 2332 (2002)). In determining whether there is
substantial evidence of the essential elements, "'the trial court
must analyze the evidence in the light most favorable to the State
and give the State the benefit of every reasonable inference from
the evidence.'" Id.
, 561 S.E.2d at 256 (quoting Parker
, 354 N.C.
at 278, 553 S.E.2d at 894).
For purposes of robbery, a "taking" has occurred when "the
thief succeeds in removing the stolen property from the victim's
possession." State v. Sumpter
, 318 N.C. 102, 111, 347 S.E.2d 396,
401 (1986). Defendant suggests that the victim "never lost the
power to control the disposition or use of her purse" because she
remained at all times within arm's reach of the purse. This
argument disregards the existence of the gun pressed into Ms.
We have recognized, in the robbery context, that "[p]roperty
is in the legal possession of a person if it is under the
protection of that person." State v. Bellamy
, 159 N.C. App. 143,
149, 582 S.E.2d 663, 668, cert. denied
, 357 N.C. 579, 589 S.E.2d
130 (2003). Defendant's contention _ that he had not taken
possession of the purse away from Ms. Catchum because she had the
ability to disregard the presence of the gun and regain possession
of the purse _ is untenable.
Based on the evidence, a jury could reasonably conclude that
Ms. Catchum's purse was no longer under her "protection," but had
been relinquished by her. Further, a jury could reasonably findthat defendant had personally exercised complete control over the
purse, even if only for a brief moment. See State v. Brooks
N.C. App. 254, 261-62, 324 S.E.2d 854, 859 (in context of common
law robbery, finding that a taking occurred when defendant's
accomplice grabbed garment containing wallet, notwithstanding
victim's subsequent struggle to reclaim garment), disc. review
, 313 N.C. 331, 327 S.E.2d 901 (1985). Under the
circumstances of this case, the proximity of Ms. Catchum to her
purse cannot negate a reasonable inference that defendant's actions
were sufficient to bring the purse under his sole control. This
assignment of error is overruled.
 In defendant's final argument on appeal, he contends that
the trial court erred by allowing the prosecutor to elicit
irrelevant testimony from the victim. During the prosecutor's
direct examination, Ms. Catchum testified that her daughter had
recently passed away and that she is very close to her young,
motherless grandchildren. Defendant maintains that this testimony
"swung the balance toward a conviction" by portraying Ms. Catchum
as a victim worthy of pity while casting defendant in a negative
Defendant concedes that defense counsel failed to object at
trial to the admission of this testimony. As a result, his
argument is entitled to appellate review only under a "plain error"standard. See
N.C.R. App. P. 10(c)(4) ("a question which was not
preserved by objection noted at trial . . . may be made the basis
of an assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error").
"The plain error rule applies only in truly exceptional cases.
Before deciding that an error by the trial court amounts to 'plain
error,' the appellate court must be convinced that absent the error
the jury probably would have reached a different verdict." State
, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
Given (1) Ms. Catchum's description of the events, (2)
defendant's own in-court admissions that he went to the mall to
commit a robbery, (3) defendant's essential corroboration of Ms.
Catchum's version of the events, and (4) the discovery of a loaded
gun at defendant's residence and a box of ammunition in the truck
defendant used for the robbery, we are not convinced that the jury
would have reached a different verdict had the disputed testimony
been excluded. Defendant's primary argument was that his gun was
unloaded. We do not believe, given the context of the entire
trial, that testimony about Ms. Catchum's daughter made it more
likely that the jury would find otherwise. See State v. Rick
N.C. App. 104, 106, 282 S.E.2d 497, 499 (1981) (finding, in light
of the State's evidence and defendant's failure to counter that
evidence, harmless error with respect to the admission of the
victim's testimony, in an attempted rape case, that she had
previously suffered breast cancer and now had bone cancer). This
assignment of error is, therefore, overruled.
Judges LEVINSON and JACKSON concur.